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What to know if you want to move with your child

Many separating parents fear a loss of time with their child more than anything else. This worry becomes intense when one of them proposes to move out of town and start a new life elsewhere.

For this (and many other) reasons, if you want to relocate and still share (or keep) legal decision-making authority for your child, or the chance to have parenting time, you must take the applicable law seriously and follow the right procedure ... or the outcome could be disastrous. Under most circumstances, this will include securing permission from the "left behind" parent or your judge.

First steps

First, review any existing court order to see if any special rules cover moving a child to a new home. If they do, obey them - and disregard what you read below if it contradicts the decree. If the decree has no such rules, though, or simply refers to the state law governing relocation, you must next determine whether the law is even relevant to your situation.

Arizona's relocation statute can be found at Arizona Revised Statutes, Section 25-408. It applies only if both parents still live in Arizona. So, for example, if your ex already lives in California ... or Oklahoma ... or overseas, it does not matter where you move, so long as you continue to obey the parenting plan. (Be careful with military deployment or assignment, though. You will never get away with exploiting your ex's service to our country by relocating while he or she is stationed elsewhere under orders - nor should you try.)

Section 408 also applies only if you want to move more than 100 miles or cross the State line - even if both parents still live in Arizona. In other words, the law will not stop you from moving across town. So, examples of perfectly legal, unrestricted relocations might include Flagstaff to Sedona, Glendale to Gilbert, Kingman to Lake Havasu City, or Oro Valley to Tucson. None of these exceed 100 miles, and all of these places are within Arizona.

Last, Section 408 does not stop a relocation if one parent possesses sole legal decision-making (LDM) and all of the parenting time. As you might guess, this is rare. The family court almost always divides either LDM or child access time (or both) in an effort to keep both parents involved with their kids. But if such a circumstance actually exists (i.e. one parent is completely shut out of the parenting plan), the relocation law will have no application to you - no matter where the parents currently live or how far the departing parent plans to move.

But let's assume Section 408 does apply. In that case, you must give written notice of the proposed relocation to the other parent at least 45 days before any move. The nonmoving parent then has 30 days to oppose the idea by filing a petition with the court. There are some complex exceptions you will want to discuss with an attorney, too.

IMPORTANT: Just because you can move without violating Arizona's child relocation law, or committing a crime, does not mean you are immune from criticism or any obligation to comply with the existing parenting plan. If that plan demands child exchanges at certain times and places, you're not off the hook just because you moved. Moreover, if your relocation jeopardizes a child's current school enrollment, medical treatment, or counseling - or significantly changes his or her life for the worse - the other parent may ask the court to revisit your access schedule, for example, or how child-related decisions are made.

In short, relocation can be an immensely positive step for a family. Our country was built on relocation, by immigrants seeking a better life for their loved ones. But relocation is also one of the most controversial and politically sensitive aspects of family law - especially when other special circumstances have afflicted the family, such as intimate partner violence, child abuse, or drug addiction. Be careful with this issue.

When a move may not be allowed

If a relocation is opposed, your judge must consider several factors under A.R.S. 25-408(I)(1)-(8). And if she decides a move will hurt the child, she may forbid that child's removal to a new location. This could be the case, for example, if the relocation:

  • was merely intended to hurt the other parent
  • eliminates any prospect of preserving the relationship between the remaining parent and a child
  • injures the children themselves by damaging their emotional, developmental, or physical needs

Two final thoughts

The court has no power to stop a parent alone from relocating any time he or she wishes. In fact, the ability to migrate is fundamental right recognized by the United States Constitution. The pinch comes with taking children along for the ride. In such cases, the family court must balance the rights of the departing parent against the (equally) fundamental rights of the remaining parent - all the while keeping the children's best interests foremost in mind. That is not easy!

Also, the court's scrutiny will run both ways. If you are the parent who is fighting relocation, make sure you are not resisting the move simply because you like controlling the situation or enjoy watching your ex struggle. It will not take long for people to recognize that kind of agenda, and you could pay a price for that strategy at trial.

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